158 Mo. App. 452 | Mo. Ct. App. | 1911
This is an application in habeas corpus. The writ issued at the instance of petitioner, who set forth in his petition that he was unlawfully deprived of his liberty by John Grueninger, Jr., sheriff of St. Louis county, Missouri, in the jail of that county, under a commitment of Division No. 2 of the circuit court thereof, for refusing to answer questions propounded to him by the grand jury and such circuit court. The questions' which were propounded to petitioner and which he declined to answer are as follows:
• “(1) Have you seen persons shooting craps for money on a table in brick building on northwest corner Delmar avenue and Suburban Railway tracks in University City, within the past twelve months ?
“(2) Is such table maintained in said building for shooting craps on?
“(3) Who has charge of said table?
“(4) Do you know the names of any person or persons who play there?”
' The petition avers that petitioner declined and refused to answer the questions above set forth, for the reason that to answer them would incriminate him, and he invokes the provisions of section 23, article 2 of the Constitution of Missouri in that behalf. Besides pro
There is nothing whatever -in the return suggesting the prisoner claimed his constitutional privilege referred to in the petition nor that to answer said questions would incriminate him. The petitioner filed no reply to this return but instead moved for his discharge thereon. The return discloses a judgment of a court of competent jurisdiction, declaring petitioner in contempt, and sets forth a commitment, regular.on its face, issued in accordance with that judgment,-commanding the sheriff to commit him to jail because of such contempt. It is argued in support of the motion for a judgment of discharge on the sheriff’s return that the petitioner alone is the judge of the matter as to whether or not the answers to the questions propounded might incriminate him, and, therefore, upon his stating and claiming his constitutional privilege
But the petitioner argues the matter on his motion for discharge as though his refusal to answer the questions and claim of privilege set forth in his petition for the writ of- habeas corpus entitled him to a discharge on the return because such recitals or averments of his petition are not denied in the return.' On this motion for discharge on the return, the recitals or averments in the petition avail nothing, for in contemplation of law the return in habeas corpus is not responsive to the petition for the writ but instead it responds to the writ alone. In this view, the rule of decision goes to the effect that, on a motion for the petitioner’s discharge on a return which is not denied or put at issue by a competent pleading in that behalf, the matter is to be determined from the facts set forth in the return, wholly independent of the allegations contained in the petition for the writ. [See ex Parte Durbin, 102 Mo. 100, 103, 104, 14 S. W. 821; Church on Habeas Corpus (2 Ed.), sec. 160; 9 Enc. Pl. and Pr. 1061; see, also, ex Parte Bryan, 76 Mo. 253.]
Sections 5080, 5081, Revised Statutes 1909, touching the matter of procedure with respect to witnesses who refuse to testify before the grand jury are as follows :
“If any witness, appearing before a grand jury, refuse to testify or to answer any interrogatories in the course of his examination, the facts shall he communicated to the court in writing, on which the question refused to he answered shall be stated, and the court shall thereupon determine whether the witness is hound to answer or not, and the grand jury shall Be immediately informed of the decision.”
“If the court determine that the witness is bound to answer, and he persists in his refusal, he shall he brought before the court, who shall proceed therein in*457 the same maimer as if the witness had been interrogated and refused to answer in open court.”
It is argued, under these statutes, that because the sheriff’s return fails.to show that the fact the petitioner refused to answer the questions propounded before the grand jury was communicated to the circuit court in writing and the.court determined that the same should be answered and the petitioner was notified of this decision before he was declared in contempt for the refusal, the proceeding appears to be illegal, and he is entitled to his discharge notwithstanding the judgment and commitment. The argument is unsound, indeed, for the matter of procedure with respect to the adjudication of contempt is not in review in this proceeding by habeas corpus, which is but a collateral attack thereon. The statutes above quoted prescribe only a method of procedure, and, as the circuit court is onemf general'jurisdiction, the law presumes that it proceeded in all respects in conformity to the method provided. Unless it be in case of appeal or writ of error from the judgment declaring the petitioner in contempt, the mere matters of procedure and evidence; on which that judgment was given are concluded. In this collateral proceeding, the only matter open for examination with respect to the judgment of contempt is the jurisdiction and power of the court to give such judgment on the facts shown in the return. [Church on Habeas Corpus (2 Ed.), secs. 298, 196; 9 Enc. Pl and Pr. 1061; see also In matter of Toney, 11 Mo. 661; Ex Parte Clay, 98 Mo. 578, 11 S. W. 998; In re Truman, 44 Mo. 181; Ex Parte Page, 49 Mo. 291.]
Erom the return, it conclusively appears the petitioner is lawfully detained under a commitment, regular on its face, issued on a judgment for contempt given by a ■ court of competent jurisdiction, and he should therefore be remanded to the custody of the sheriff. It is so ordered.